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In part two of a two-part series, Ariel Brott outlines key changes to the Employer Nomination Scheme.

Last July Immigration decided to rip up the old subclass 856/121 Employer Nomination Scheme (ENS) and replace it with the new subclass 186 ENS scheme. While not an entirely exotic beast, the new scheme has a number of features that should be on the radar of any HR professional who has sponsored, or considered sponsoring, non-citizen employees.

In the last instalment of this two-part series, I discussed the three streams of the new ENS system as well as changes to eligible occupations and age limits. In this instalment I will take a look at the new ENS scheme’s requirements for English ability, skill, salary, training and position availability.

English

New scheme: Previously most visa applicants – subject to certain exceptions - had to prove they had “vocational” English, usually satisfied by achieving a score of 5 in all components of the IELTS test. This remains the case for applicants under the Temporary Residence Transition Stream. However, Direct Entry Stream applicants will need to prove they have “competent” English, usually satisfied by achieving a score of 6 in all components of the IELTS test. As for Labour Agreement Stream applicants, their requirements will vary according to the terms of their Labour Agreement.

Comment: Whereas in the past it was possible to make submissions as to a broad range of exceptional circumstances, this has been replaced by a rigid series of specific exemptions from the requirement to undertake an English test. These include:

visa applicants who have already submitted IELTS results for the grant of their subclass 457 visa;

Ministers of Religion;

visa applicants applying through the Temporary Residence Transition Stream who have completed at least five years of full-time secondary or tertiary study where all of the tuition was in English; and

visa applicants with annual earnings above the ATO High Income Threshold (currently $180,000).

Skill

New scheme: Under the new ENS scheme, Temporary Residence Transition Stream applicants will be taken to have established their skill through their years of experience under a subclass 457 visa.

Direct Entry Stream applicants, however, will need to have a formal skills assessment as well as at least three years experience in the nominated role.

Comment: Once again, while the basic thresholds are similar to the old scheme, they are subject to a far narrower range of specific exemptions. These apply to a small number of occupations (e.g. certain academics and scientists as well as Ministers of Religion), subclass 444 or 461 visa holders in certain circumstances, as well as those whose nominated salary is above the relevant threshold, currently $180,000.

Salary

New scheme: The new ENS scheme eschews with the specified minimum salary level, however sponsors do need to demonstrate that visa applicants are being paid market rates.

In reality, any proposed salary below the threshold still applying to subclass 457 visas (currently $51,400) is likely to raise red flags as to whether it is a fair market rate for skilled work, especially if applying through the Temporary Residence Transition Stream.

Training

New scheme:Sponsors will now be required to meet specific training thresholds. Other than for start-up businesses, this will mean:

expenditure in the past year on training Australian employees, equivalent to at least 1% of payroll; or

a contribution to an industry training fund in the past year, equivalent to at least 2% of payroll.

Comment: This brings the ENS scheme in line with the subclass 457 scheme. Accordingly, satisfying the training requirements via the Temporary Residence Transition Stream should be a given for companies that have complied with their subclass 457 training obligations. Sponsors of visa applicants through the Direct Entry Scheme may, on the other hand, have to increase their investment in training.

Position Availability

New scheme: Under the previous ENS scheme, employers had to commit to making the position available for a minimum of three years. This has been decreased to two years.

Comment: Other than for discrete projects of between two and three years, this is unlikely to have a material impact on most applications, as all that is required is a genuine intention to make the position available for the specified period.

Conclusion

The new ENS scheme opens up opportunities for certain types of visa applicants, and closes them for others, simultaneously removing certain employer obligations while replacing them with new ones. I have detailed only some of the changes to this one particular visa, and it is inevitable that more changes are to come. While no single article can replace detailed and specific legal advice, HR professionals would be well advised to reassess their existing and potential employees’ pathways to permanent residence, and how this affects their workforce policies and planning.

About the author

Ariel Brott is a solicitor and migration agent in the corporate division of Australia’s leading migration firm Erskine Rodan & Associates. If you would like him to write about any particular topic, email: ariel.brott@erskinerodan.com.au